UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-A/A

 

 

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

 

Biolase, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   87-0442441
(State of Incorporation or Organization)   (I.R.S. Employer Identification No.)
4 Cromwell, Irvine, California   92618
(Address of Principal Executive Offices)   (Zip Code)

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

to be so Registered

 

Name of Each Exchange on Which

Each Class is to be Registered

Rights to Purchase Preferred Stock   NASDAQ Capital Market

 

 

 

If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), please check the following box.   x    If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective Pursuant to General Instruction A.(d), please check the following box.   ¨

Securities Act registration statement file number to which this form relates: N/A (If applicable)

Securities to be registered pursuant to Section 12(g) of the Act:

N/A

(Title of Class)

 

 

 


Item 1. Description of Registrant’s Securities to Be Registered.

On November 3, 2014, Biolase, Inc. (the “Company”) and Computershare Trust Company, N.A., as rights agent and successor to U.S. Stock Transfer Corporation (the “Rights Agent”), entered into a Third Amendment to Rights Agreement (the “Third Amendment”), amending the Rights Agreement dated as of December 31, 1998 (as amended as of December 19, 2008 and March 17, 2014, the “Rights Agreement”), between the Company and the Rights Agent.

The Third Amendment amends the definitions of “Beneficially Own” and “Beneficial Owner” to exclude from beneficial ownership any securities that are subject to a warrant purchased pursuant to an agreement with the Company to the extent the terms of the warrant would prohibit the acquisition of those securities.

The rights issued pursuant to the Rights Agreement are in all respects subject to and governed by the provisions of the Rights Agreement, as amended by the Third Amendment. The Rights Agreement is described in and included as an exhibit to the Company’s Registration Statement on Form 8-A (File No. 000-19627), filed with the Securities and Exchange Commission (the “SEC”) on December 29, 1998. The Amendment to Rights Agreement is filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-19627), filed with the SEC on December 22, 2008, and the Amended and Restated Second Amendment to Rights Agreement is filed as an exhibit to the Company’s Registration Statement on Form 8-A (File No. 001-36385), filed with the SEC on March 28, 2014. Such descriptions, as amended hereby, are incorporated by reference herein.

The Third Amendment is filed as Exhibit 4.4 hereto, and is incorporated by reference herein.

 

Item 2. Exhibits.

 

Exhibit

Number

  

Description

3.1.1    Restated Certificate of Incorporation, including, (i) Certificate of Designations, Preferences and Rights of 6% Redeemable Cumulative Convertible Preferred Stock of the Registrant; (ii) Certificate of Designations, Preferences and Rights of Series A 6% Redeemable Cumulative Convertible Preferred Stock of The Registrant; (iii) Certificate of Correction Filed to Correct a Certain Error in the Certificate of Designation of The Registrant; and (iv) Certificate of Designations of Series B Junior Participating Cumulative Preferred Stock of the Registrant (incorporated by reference to Exhibit 3.1 of the Amendment No. 1 to the Company’s Registration Statement on Form S-1, filed with the SEC on December 23, 2005).
3.1.2    Amendment to Restated Certificate of Incorporation, effective as of May 14, 2012 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on May 16, 2012).
3.1.3    Second Amendment to Restated Certificate of Incorporation, effective as of October 30, 2014.
3.2    Sixth Amended and Restated Bylaws of the Registrant, adopted on June 26, 2014 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 30, 2014).
4.1    Rights Agreement, dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation (incorporated by reference to Exhibit 1 to the Company’s Registration Statement on Form 8-A, filed with the SEC on December 29, 1998).
4.2    Amendment to Rights Agreement, dated December 19, 2008, between the Registrant and Computershare Trust Company, N.A. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the SEC on December 22, 2008).
4.3    Amended and Restated Second Amendment to Rights Agreement, dated March 17, 2014 (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A, filed with the SEC on March 28, 2014).
4.4    Third Amendment to Rights Agreement, dated as of November 3, 2014, between the Registrant and Computershare Trust Company, N.A., as rights agent.

 

2


SIGNATURE

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    BIOLASE, INC.
Date: November 4, 2014     By:  

/s/ Frederick D. Furry

    Name:   Frederick D. Furry
    Title:   Chief Financial Officer

 

3


EXHIBIT INDEX

 

Exhibit

Number

  

Description

3.1.1    Restated Certificate of Incorporation, including, (i) Certificate of Designations, Preferences and Rights of 6% Redeemable Cumulative Convertible Preferred Stock of the Registrant; (ii) Certificate of Designations, Preferences and Rights of Series A 6% Redeemable Cumulative Convertible Preferred Stock of The Registrant; (iii) Certificate of Correction Filed to Correct a Certain Error in the Certificate of Designation of The Registrant; and (iv) Certificate of Designations of Series B Junior Participating Cumulative Preferred Stock of the Registrant (incorporated by reference to Exhibit 3.1 of the Amendment No. 1 to the Company’s Registration Statement on Form S-1, filed with the SEC on December 23, 2005).
3.1.2    Amendment to Restated Certificate of Incorporation, effective as of May 14, 2012 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on May 16, 2012).
3.1.3    Second Amendment to Restated Certificate of Incorporation, effective as of October 30, 2014.
3.2    Sixth Amended and Restated Bylaws of the Registrant, adopted on June 26, 2014 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 30, 2014).
4.1    Rights Agreement, dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation (incorporated by reference to Exhibit 1 to the Company’s Registration Statement on Form 8-A, filed with the SEC on December 29, 1998).
4.2    Amendment to Rights Agreement, dated December 19, 2008, between the Registrant and Computershare Trust Company, N.A. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the SEC on December 22, 2008).
4.3    Amended and Restated Second Amendment to Rights Agreement, dated March 17, 2014 (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A, filed with the SEC on March 28, 2014).
4.4    Third Amendment to Rights Agreement, dated as of November 3, 2014, between the Registrant and Computershare Trust Company, N.A., as rights agent.

 

4

Exhibit 3.1.3

SECOND AMENDMENT TO

RESTATED CERTIFICATE OF INCORPORATION

OF

BIOLASE, INC.

Biolase, Inc. (the “ Corporation ”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, hereby certifies as follows:

1. This Certificate of Amendment amends the provisions of the Corporation’s Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on May 23, 1994, as amended on May 14, 2012 (the “ Restated Certificate of Incorporation ”).

2. Article III of the Restated Certificate of Incorporation is hereby amended and restated in its entirety as follows:

THIRD. The total number of shares of stock which the Corporation shall have authority to issue is ONE HUNDRED ONE MILLION (101,000,000) shares of which stock ONE HUNDRED MILLION (100,000,000) shares of $.001 par value shall be common stock and of which ONE MILLION (1,000,000) shares of $.001 par value shall be preferred stock.

3. This amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

4. All other provisions of the Restated Certificate of Incorporation shall remain in full force and effect.


IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed this 29 th day of October 2014.

 

By:  

/s/ Frederick D. Furry

  Frederick D. Furry
  Chief Financial Officer

Exhibit 4.4

THIRD AMENDMENT TO RIGHTS AGREEMENT

THIS THIRD AMENDMENT TO RIGHTS AGREEMENT (this “ Amendment ”) is made and entered into as of November 3, 2014, by and between BIOLASE, INC., a Delaware corporation (the “ Company ”), and COMPUTERSHARE TRUST COMPANY, N.A., as successor to U.S. Stock Transfer Corporation, a California corporation (the “ Rights Agent ”).

WHEREAS, the Company and the Rights Agent entered into a Rights Agreement dated as of December 31, 1998 (as amended as of December 19, 2008 and March 17, 2014, the “ Agreement ”);

WHEREAS, in connection with the proposed offering and sale of shares of Company common stock, par value $0.001 per share (“ Common Stock ”), in a private placement without registration under the Securities Act of 1933, as amended, the Company desires to issue and sell certain warrants to purchase shares of Common Stock (“ Warrants ”) that prohibit the Company from effecting the exercise of such Warrants, and prohibit the holder of such Warrants from exercising such Warrants, to the extent that after giving effect to such exercise, the holder (together with its affiliates, and any other persons acting as a group together with the holder or any of the holder’s affiliates), would beneficially own in excess of 19.99% of the outstanding shares of Common Stock (the “ 19.99% Limitation ”);

WHEREAS, under the Agreement, a Person (as defined in the Agreement) will be deemed the “Beneficial Owner” of and will be deemed to “Beneficially Own” any securities that such Person has the right to acquire (even if such right is exercisable only after the fulfillment of a condition) such that, under the Agreement, notwithstanding the 19.99% Limitation, the holder of a Warrant will be deemed the “Beneficial Owner” of and will be deemed to “Beneficially Own” all shares of Common Stock subject to the Warrant, including all shares of Common Stock that such holder could not acquire under the Warrant due to the 19.99% Limitation; and

WHEREAS, in light of the consistency of the terms of the Warrants with the overall purpose and intent of the Agreement, the Company desires to amend the Agreement to ensure that a Warrant holder will not be deemed the “Beneficial Owner” of or to “Beneficially Own” any shares of Common Stock that such holder is prohibited from acquiring by the terms of the Warrants;

NOW, THEREFORE, for good consideration, the adequacy of which is hereby acknowledged, the Company hereby agrees to amend the Agreement as follows in accordance with the approval of the Board of the Directors as required by Section 27 of the Agreement and directs the Rights Agent to execute this Amendment:

1. Section 1 is hereby amended by replacing the paragraph immediately preceding the definition of “Board of Directors” with the following:

Notwithstanding anything to the contrary in the preceding provisions of this definition of “Beneficial Owner” and “Beneficially Own,” (a) a Person engaged in business as an underwriter of securities shall not be deemed to be the Beneficial Owner of, or to Beneficially Own, any securities acquired through such Person’s participation in good faith in a firm commitment underwriting until the expiration of 40 days after the date of such acquisition and (b) a Person shall not be deemed to be the Beneficial Owner of, or to Beneficially Own, any securities that are subject to a warrant purchased pursuant to an agreement with the Company to the extent that the terms of such warrant prohibit such Person from acquiring such securities.

2. This Amendment is effective as of the date first set forth above.


3. This Amendment may be executed in any number of counterparts and each such counterpart shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment executed and/or transmitted electronically shall have the same authority, effect and enforceability as an original signature.

Except as modified hereby, the Agreement is reaffirmed in all respects, and all references therein to “the Agreement” shall mean the Agreement, as modified hereby.

* * * * *

 

2


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.

 

BIOLASE, INC.

/s/ Jeffrey M. Nugent

By:   Jeffrey M. Nugent
Its:   President and Chief Executive Officer
COMPUTERSHARE TRUST COMPANY, N.A.

/s/ Joseph Campbell

By:   Joseph Campbell
Its:   Vice President